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Appeals Court Rules Medical Pot Use OK While on Probation

Daily Dose 2011-01-03 0 comments

By Rob Young| Published by Appeal-Democrat

A Sutter County judge erred in not allowing a man who’d been convicted of transporting methamphetamine to use medical marijuana, appellate justices ruled.

In a 22-page ruling Friday, the 3rd District Court of Appeal in Sacramento said Vernon Emile Smith Jr., 23, of Sacramento, had a right to use the drug with a doctor’s prescription under the Compassionate Use Act.

Judge Brian Aronson heard Smith’s request in July 2009 to modify terms of his probation, according to Sutter County Superior Court records.

In denying the request, the judge cited Smith’s previous violation of probation — misdemeanor vandalism — and the doctor’s omission of the exact reason why Smith needed medical marijuana. The doctor described it as a “serious medical condition.”

The judge described Smith’s citation of the Compassionate Use Act as “insufficient,” Justice Tani Cantil-Sakauye wrote.

Smith’s attorney at the time said the judge was “not in a position to go behind the doctor-patient privilege and inquire as to the efficacy of the doctor’s statement,” according to the ruling.

“Here, (the doctor’s) professional opinion … that defendant may benefit from marijuana provided no basis for concluding that defendant’s showing of eligibility under the Compassionate Use Act was ‘insufficient,'” Cantil-Sakauye wrote.

The act allows probationers to ask courts for permission to use medical marijuana. Smith “sufficiently established his eligibility to use marijuana” under the act, she wrote.

“We do not perceive why and we are not inclined to speculate exactly how defendant’s showing could be viewed as insufficient when the statute squarely places the onus on the trial court (not the appellate court) to specify the reasons for its decision,” she wrote.

She added, however, that “it is possible that a legitimate, rational reason exists to preclude (Smith) from using medical marijuana while on probation” and ordered a new hearing in Sutter County Superior Court.